Double Jeopardy; Whether Reprosecution of the Defendants is Barred by the
Double Jeopardy Clause Because Declaration of a Mistrial in the First
Prosecution was not Based on Manifest Necessity. The defendants, Richard Anderson and
Janice Anderson, were jointly tried on two separate informations charging them
with larceny and conspiracy to commit larceny. The trial began on June 12,
2007. On June 24, 2007, the trial court, Schimelman, J., continued the
case after being informed that the prosecutor, John Malone, had become
seriously ill and had to be hospitalized. On July 5, 2007, Judge Schimelman
spoke with Malone on the telephone and learned that his condition was going to
necessitate further hospitalization, followed by a lengthy convalescence.
Later that day, Judge Schimelman held a hearing to discuss potential restart
dates for the trial. At that hearing, the state was represented by supervisory
assistant state's attorney John Whalen. Judge Schimelman, based on Whalen's representations
and his own observations, found that another state's attorney would not be able
to replace Malone due to the complexity of the case. The court also noted that
the jurors had expressed concerns regarding the length of the trial even before
Malone was hospitalized. Considering these factors, Judge Schimelman, over the
defendants' objection, declared a mistrial in compliance with the manifest
necessity doctrine originally articulated in United States v. Perez,
22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). Subsequently, the defendants moved
to dismiss the informations, claiming that the declaration of a mistrial by Judge
Schimelman had not been based on manifest necessity and, therefore, further
prosecution was barred by the double jeopardy clauses of the federal and state
constitutions. The defendants argued that, before declaring the mistrial, Judge
Schimelman should have polled the jury as to their potential availability to
reconvene at a later date. The trial court, Handy, J., disagreed, concluding
that polling the jury would have been futile because there was no basis to
estimate when Malone would be able to return, if at all. Next, the defendants claimed
that Judge Schimelman improperly accepted the state's "simple
representation" that another state's attorney would not be able to replace
Malone. The court rejected that argument as well, stating that Judge
Schimelman was entitled to credit the state's assertions about the infeasibility
of replacing Malone, especially in light of his own knowledge of the complexity
of the case. Finally, the court rejected the defendants' claim that the state
should have "back up counsel" for complex cases, noting that there
was no support for such a proposition, and that it was not administratively
feasible for the state to do so. Accordingly, the trial court denied the
defendants' motion to dismiss, ruling that the declaration of a mistrial by Judge
Schimelman had been based on manifest necessity and that further prosecution
was not barred by double jeopardy. In this appeal, the Supreme Court will
review the trial court's ruling.